1. Heard Mr. D.N. Gupta learned counsel for appellant and Mr. Ravinder Sharina advocate and respondents.

2. Admit. Mr. Sharma takes notice on behalf of respondents. With the consent of learned counsel for the parties the appeal in hand is taken up for final disposal.

This appeal is directed against the order of learned District Judge Kathua dated 21-8-2001 passed in file no II/application titled as M/S Kashmir Lion Industries versus Punjab National Bank.

The incontrovertable facts leading up to this appeal are that an exparte decree for recovery of loan amount came to be recorded by the learned Sub-Judge on 31-3-1998 in civil original suit titled as above. On 1st of June 99 the appellant defendant came to approach the trail court through the medium of an application with the prayer for setting aside the side exparte decree and judgment recorded by the court on the ground that the appellant defendant had engaged Mr. Dushyant Jandial Advocate as his counsel in the said civil original suit pending decision before (he trial court who had assured the appellant defendant that he shall be kept informed by him about the progress of the case. That during the said period the appellant defendant went out of State in connection with his business affairs and as a result of which he could not cause his appearance before the trial court in the case. That on his return from the business trip he learnt that the Nazir of the trail court had visited the defendants factory for execution of attachment order passed in the execution of said expart decree passed in the said suit. That immediately on coming to know about the passing of decree he has approached the court for its setting aside. That the absence of appellant defendant was never deliberate or willful. The learned trial court on conclusion of the proceedings with respect to said petition under order 9 rule 13 CPC came to reject the application by virtue ofits order dated 21-8-2001 this order is impugned in this appeal.

4. Stand of Mr. D.N.Gupta Sr. Advocate the learned counsel for the appellant is that the appellant has shown sufficient cause for his non appearance on the date when exparte proceedings were initiated against him . That the appellant had engaged a counsel to contest the suit before the trial court on its behalf who failed to appear in the case when the same was called on for hearing, as a result of which the exparte proceedings were initiated against the appellant. That it is because of the negligence of learned counsel engaged by the appellant before the trial court the exparte proceeding came to be initiated against the appellant and the negligence of a counsel is considered a sufficient cause for the setting aside an expart decree.

5. The stand of Mr. Ravinder Sharma Advocate appearing on behalf of respondent bank is that the exparte decree in the civil original suit in question came to be passed on 31-3-1998 while the petition for setting aside the said exparte decree and judgment came to be filed by the appellant before the trail court on 1 -6-1999, as a result of which the petition is hopelessly time barred. He further submits that no application for condonation of delay has been filed before the trial court in presenting the petition under order 9 rule 13 of CPC.

6. Considered the rival contention of learned counsel for the parties. It is not disputed that the exparte decree in question came to be recorded by the trial court in the civil original suit instituted by respondent bank against the appellant defendant on 31-3-1998. The record of trial court reveals that petition for setting aside the said exparte decree and judgment came to be filed before the learned trial court on 1-6-1999.It is also not disputed that the appellant defendant caused its appearance before the court below in the said civil original suit through its counsel Mr. Dushyant Jandial Advocate. Therefore the trail court was called upon in the proceedings to decide as to whether there was sufficient cause

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